This article appeared in the July 1999 issue of the
© 1999 Massachusetts Bar Association
Robin J. Dimieri is a principal and counsel to Schwartz,Shaw & Griffith in Boston. She concentrates her practice in therepresentation of health care providers in corporate, regulatory and patienttreatment matters.
Today, health care lawyers face greater challenges thanever before as advocates of health care providers. Peter Clark's articlein this Section Review's Health Law Section makes clear that we must bevigilant in advising clients about Medicare/Medicaid fraud and abuse. Attorneyswho provide erroneous advice in a transaction that involves fraud can facecriminal prosecution. The Kansas City case discussed by Clark, U.S. v.Anderson, involved the prosecution of attorneys who were ultimately found tohave given the correct advice; these attorneys were acquitted by the judge on amotion for judgment of acquittal. Nevertheless, the prosecution of attorneys isa daunting reminder of the importance of thoroughly researched and carefullyanalyzed counsel.
Adding to the stress of potential criminal prosecutions,health care lawyers routinely work with clients who are under enormous pressureto deliver services with significantly declining revenue. Consequently, our clientsare facing more difficult legal challenges, including possible bankruptcies(sadly, I recently heard that a bankruptcy lawyer was the most popular speakerat a meeting of a national association of providers), ill-conceivedconsolidations, ever-changing regulatory requirements and liability exposureborne of reimbursement cuts so severe that they force providers to slashservices.
The squeeze on health care providers is aptly illustratedby recent events in the home health industry. Eighteen months ago, the HealthCare Financing Administration began implementing the Interim Payment System forhome health agencies, a very restrictive system of reimbursement instituted bythe federal Balanced Budget Act of 1997. Congress initially estimated that IPSfirst-year savings to the Medicare system would be $16 billion dollars; actualfirst-year "savings" were $48 billion — triple the estimate.Home health industry pleas were initially ignored by Congress and HCFA,resulting in 33 percent of home health agencies nationally going out ofbusiness in the last 18 months. While this attrition may have corrected someexcesses of the past, the IPS system created costly new problems. Vulnerableand frail elderly citizens now confront health risks due to inadequate access tohome care. Some patients whose very survival has been dependent on home careservices are now being transferred to nursing homes and hospitals, no doubtcosting Medicare far more.
What can we as lawyers do to support our provider clientsin an increasingly uncertain and chaotic environment? First and foremost, Ibelieve we must advocate for our clients in the legislative and regulatoryhalls. We should remind our legislators that cuts in service have real andunintended consequences, both legal and economic. While I have mixed feelingsabout combining advocacy and lawyering, I personally believe that our healthcare system is in such grave danger that we have an ethical responsibility toadvocate. Moreover, we can hardly stand by while our clients increasingly incurlegal risks in the name of saving money.
Secondly, we must encourage our provider clients to focuson their missions and the needs of the communities they serve. It is too easy— and too risky — to become dependent on the vagaries of reimbursementand to become survival-driven. We should help our clients recognize and seizenew and inventive opportunities that sometimes emerge only in a chaotic system.We should sometimes suggest that clients retool or reengineer their services.This often means abandoning traditional ways of delivering services in order toserve the greatest number of patients with fewer resources. However, delivering services lessexpensively does not always mean a decline in quality.
By way of example, a large metropolitan home health agencyrecently retooled its services to meet changing market demands. With the helpof its consultant, Innovation Associates/ Arthur D. Little, this agencyrethought how it could deliver services more efficiently while improvingquality of care. It abandoned the traditional model of providing home healthservices, shifting to a locally based, nonhierarchical system of providingcare. The agency also applied the tools and methods of "learningorganizations" to develop a brand-new service delivery model involving amulti-disciplinary, non-hierarchical approach to home health services at alllevels within the organization. Decision-making and patient-care planning weremoved to teams of both professional staff and home health aide providers. The agencywill focus on more short-hour cases per day — without a reduction inquality due to the team-based approach to care.
The good news is that this provider expects to deliver ahigher quality service at a lower cost. The unfortunate news is that many otherproviders will not make such a transition in time to survive. However, throughadvocacy and forward-looking counsel, we can immeasurably assist our providerclients to strive for an efficient, as well as high quality, delivery system.